Moore v. V. R. Wattinger Co.

490 S.W.2d 898, 1973 Tex. App. LEXIS 2541
CourtCourt of Appeals of Texas
DecidedFebruary 14, 1973
DocketNo. 11989
StatusPublished
Cited by1 cases

This text of 490 S.W.2d 898 (Moore v. V. R. Wattinger Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Moore v. V. R. Wattinger Co., 490 S.W.2d 898, 1973 Tex. App. LEXIS 2541 (Tex. Ct. App. 1973).

Opinion

PHILLIPS, Chief Justice.

This is a contract suit between two building contractors.1 Under the terms of the contract, appellant (plaintiff below) was a subcontractor and appellee (defendant below), in effect was the contractor. [899]*899Through a series of events outlined below, appellant never completed the jobs in question and appellee himself furnished the work. Appellant brought suit for damages, both compensatory and exemplary, alleging breach of contract, tortious interference with his business and loss of business profits. Appellee denied those allegations and counterclaimed for damages alleging breach of contract. Trial was to the jury and on answers of the jury to issues submitted, the trial court granted judgment for appellee and declared that appellant take nothing. Appellant filed motions for judgment non obstante veredicto and for new trial, both of which were overruled by the court. It is from the adverse rulings on these motions that appellant perfects his appeal to this Court.

We affirm.

Appellant’s first two points, briefed together, are the error of the court in not granting appellant’s motion for judgment non obstante veredicto and appellant’s motion for new trial and entering judgment for appellee based on the jury’s answers to Special Issues Nos. 1 and 4 because the jury’s answers are not supported by any evidence or by insqfficient evidence or are against the great weight and preponderance of the evidence. We overrule these points.

Appellant’s Issue No. 1 inquired of the jury whether during the early part of the year 1969, appellee conceived a plan to cause the financial collapse of appellant and his business, to which the jury answered “we do not”. Special Issue No. 4 sought the fair market value of appellant’s business on or about January 14, 1970, to which the jury answered “$0.00”.

These were appellant’s issues. In situations where a jury returns a negative answer to an issue upon which the proponent has the burden of proof, the jury’s answer need not be supported by affirmative evidence. Therefore it avails the complaining party nothing to assert that a negative answer is without support in the evidence. Ross v. Sher, 483 S.W.2d 297 (Tex.Civ.App.1972, writ ref. n. r. e.); Smith v. Safeway Stores, 433 S.W.2d 217 (Tex.Civ.App.1968, writ ref. n. r. e.); Weiser v. Hampton, 445 S.W.2d 224 (Tex.Civ.App.1969, writ ref. n. r. e.). However, since appellant also contends that these answers were against the great weight and preponderance of the evidence, we have reviewed all the evidence.

We hold that there was ample evidence to sustain the answers to these issues. Appellee testified that he had no intention whatsoever to put appellant out of business and testified that he had paid appellant $95,000 in 1969 as further evidence of this fact. As to the value of appellant’s business, the jury was free to believe ap-pellee’s accountant witness who testified that in his opinion appellant’s business was worthless.

Appellant’s points 3 and 4, briefed together, are to the effect that there was no evidence of, or insufficient evidence for, the jury’s answers to Special Issues 7, 8, and 9, or that the answers were against the great weight and preponderance of the evidence. We overrule these points.

Under Special Issue No. 7, Special Issue No. 7 inquired whether appellant and his business “were not 97% complete in their work on the M.H.M.R. Central Office Building?”, the jury answered “we do”. In response to Special Issue No. 8 which inquired whether the jury found that appellant and his business were not proceeding with their work on the M.H. M.R. Central Office Building in such a way as to prevent unreasonable delay to the other contracts and trades on that building, the jury answered “we do”. With respect to Special Issue No. 9, which inquired whether the jury found that appellant and his business were causing a material interference with other trades on the M.H.M.R. Central Office Building during the last part of December, 1969, and [900]*900the first two weeks of January, 1970, up to and including January 14, 1970, the jury answered “we do”.

These were appellee’s or defensive issues submitting its theory that appellant breached the contract. They were all answered in appellee’s favor and we find ample evidence to support them. Appellee admits that there was no direct testimony as to the percentage of completion; however the jury did find that the reasonable cost of completing this particular job was $1,813.81 and, since the job was worth $56,235.28 (3% of which is $1,687.05) the jury had a basis for finding that the work was not 97% complete. In addition, testimony of the superintendents of the general contractors supports all of these findings clearly and unequivocally.

Appellant’s points five and six are the no evidence, insufficient evidence and against the great weight and preponderance of the evidence points concerning the jury’s answers to Special Issues 10 and 11. We overrule these points.

Special Issue No. 10 inquired what sum of money was the reasonable cost of furnishing necessary labor and material to complete the sheet metal work on the M.H.M. R. Central Office Building. The jury answered $1,813.81. Special Issue No. 11 inquired as to the sum of money to be the reasonable cost of furnishing necessary labor and material to complete the sheet metal work on the Johnson City Hospital. The jury answered $6,923.19.

Appellant admits that appellee should be able to recover his reasonable cost of completion and that this amount should rightfully be subtracted from the amount appel-lee made on the contract. But, according to the jury findings of the reasonable cost of completion, there was nothing left on the contracts and appellant received nothing. Consequently, appellant contends that the jury’s answers were not supported by the evidence.

Appellant contends that the figures from which the jury found to be the reasonable cost came from appellee’s testimony regarding what his actual cost was and from exhibits and certain “bills” which appellant asserts were hearsay, consequently, no evidence. We hold that there was sufficient evidence of the reasonable cost of completion. Admitting, for purposes of argument only, that the documents complained of were hearsay and inadmissible, they were not the only evidence. Appellee himself was an expert in the field. He testified not only as to what his actual cost was, but also as to whether that cost was reasonable. The jury believed this evidence.

Appellant’s points seven and eight are his no evidence, insufficient evidence and against the great weight and preponderance of the evidence points in respect to the jury’s answer to Special Issue No. 12 inquiring as to whether a properly submitted change order would have been approved as to various parts of the construction work at the Johnson City Hospital. This was asked as to diffuser changes, dining room duct work and delivery room duct work change. To each of these the jury answered “we do not”. We overrule these points.

In the first place, the same rule applies here that applied under points 1 and 2 above. These were appellant’s issues and he had the burden of securing favorable findings. He did not carry his burden.

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Bluebook (online)
490 S.W.2d 898, 1973 Tex. App. LEXIS 2541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-v-r-wattinger-co-texapp-1973.